In the case of Central & North West London NHS Foundation Trust v Abimbola the EAT considered whether the Claimant’s dishonesty and evasiveness in giving evidence at the remedy hearing, was relevant to a decision of the Employment Tribunal to order reinstatement.
Mr Abimbola was employed by the Central & North West London NHS Foundation Trust (The Trust) as a Psychiatric Nurse from February 2000 until March 2007, when he was dismissed for gross misconduct. Mr Abimbola bought a claim for unfair dismissal which was upheld by the Employment Tribunal on the grounds that the Trust did not have reasonable grounds for their belief in Mr Abimbola’s misconduct. The Tribunal also did not agree with the Trust’s argument that Mr Abimbola had contributed to his dismissal by his own conduct.
A remedy hearing subsequently took place, at which Mr Abimbola gave evidence that he had not worked since his dismissal, but then conceded under cross examination that he had in fact worked an average of three days a week for a period of ten weeks, earning a total of £900. The Tribunal disregarded the contradictory evidence as a relevant factor when deciding that it was practicable to order reinstatement along with arrears of salary and pension rights. The employer appealed the reinstatement order.
In its judgment, the EAT notes that although reinstatement or reengagement are the primary remedies in unfair dismissal, only about 3% of successful unfair dismissal claims result in an order for re-employment.
Tribunals have a wide discretion in determining whether or not to order reinstatement but the Tribunal must take in to account the following three factors:
- Whether the claimant wishes to be reinstated;
- Whether it is practicable for the employer to comply with an order for reinstatement; and
- Where the claimant caused or contributed to his dismissal, whether it would be just to order his reinstatement.
In this case Mr Abimbola asked for reinstatement and was found not to have contributed to his dismissal so the only live issue before the Tribunal was whether it was practicable for the Trust to comply with an order for reinstatement.
The legislation sets out a two-stage process when dealing with reinstatement. At the first remedy hearing the Tribunal needs to make a decision as to the practicability of reinstatement. Such a decision is only provisional at this stage. Under the legislation, an employer cannot be forced to take an employee back under a reinstatement order. If, however, they fail to comply with an order for reinstatement, at a second remedy hearing the Tribunal will also make an additional award of between 26 and 52 weeks pay unless the employer can prove at the second hearing that reinstatement is impracticable. At this stage the Tribunal will make a final decision in relation to the practicability of reinstatement.
In this case, the EAT considered the meaning of “practicability” and determined that practicable means “more than possible”. Loss of mutual trust and confidence between the employer and employee may render re-employment impracticable.
The employer argued that the Mr Amimbola’s false claim in evidence as to his losses, meant that they could no longer have trust and confidence in him. The EAT held “this dishonesty in giving evidence at the remedy hearing was material to the Employment Tribunal’s consideration of whether or not to make a reinstatement order and ought to have been taken into account in the exercise of their discretion”.
In addition, the EAT also considered that other issues in this case were a final warning and unsubstantiated outstanding allegations of assault and sexual misconduct, were all “relevant to the issue of trust and confidence and therefore practicability of reinstatement.” It was also held that another relevant factor would be the employer’s genuine belief that the employee was guilty of the misconduct for which he was dismissed, even though that belief may not have been based on reasonable grounds, although the latter consideration was not taken into account in the EAT’s final determination as the issue had not been raised before the Employment Tribunal.
The EAT concluded that the Tribunal deliberately excluded from its discretion relevant factors and that, taking all those factors in to account, “it is clear that the Respondent could no longer be expected to trust the Claimant.” The EAT accordingly set aside the reinstatement order and remitted the case to the Employment Tribunal to determine compensation.